King & Spalding Decides That Marriage And Democracy Are Indefensible, But Terrorists and Murderers Are Fine

Who deserves legal representation – the American people, or their sworn enemies? To the Atlanta, Georgia law firm of King & Spalding, the answer most emphatically is only the latter.

That is the message sent by that firm as we get news that the head of King & Spalding’s appellate practice group, former Solicitor General Paul Clement, has resigned from the firm after King & Spalding backed out of Clement’s representation of the United States House of Representatives in defending the constitutionality of the Defense of Marriage Act (DOMA).

DOMA, as you will recall, provides that states do not, under the Full Faith and Credit Clause of the U.S. Constitution, need to recognize same-sex marriages in other states. That doesn’t prevent you from getting a same-sex marriage if your state permits it; it just means that, like your gun permit, it won’t be respected across state lines. It also, in Section 3, limits the federal definition of marriage to opposite-sex marriages:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.’

DOMA is not some obscure act by a tiny, benighted region of the country, nor a relic of some dim, forgotten past. It is an Act of Congress passed in 1996. It passed the House of Representatives by an overwhelming margin, 342-67, with the support of then-Democratic Minority Leader Dick Gephardt, current Democratic Whip Steny Hoyer, current Assistant Democratic Leader Jim Clyburn, current Assistant Democratic Senate Majority Leader Dick Durbin, current Vice Chair of the Conference and Chair of the Senate Democratic Policy Committee Chuck Schumer, and liberal representatives like Robert Menendez, Ben Cardin, Nita Lowey, Earl Blumenauer, and Bobby Rush. It passed the United States Senate by an even more overwhelming margin, 85-14. Senators voting it into law included the then-Democratic Minority Leader, Tom Daschle; the current Democratic Majority Leader, Harry Reid; the 2000 Democratic Vice Presidential nominee, Joe Lieberman; the current Vice President of the United States, Joe Biden; current Secretary of the Democratic Senate Conference and head of the DSCC Patty Murray; and a battery of other liberal icons – Barbara Mikulski, Bill Bradley, Carl Levin, Chris Dodd, Patrick Leahy, Tom Harkin, Frank Lautenberg, Herb Kohl, and Paul Wellstone. It was signed into law by a Democratic president, Bill Clinton, without noticeable vocal objection from any of the many members of his Administration now serving in the current White House, Congress or statehouses. President Clinton stressed that DOMA “has no effect on any current federal, state or local anti-discrimination law and does not constrain the right of Congress or any state or locality to enact anti-discrimination laws.” He was handily re-elected six weeks later.

Notice that nothing in Section 3 would prevent Congress from providing, in any statute passed after 1996, the same benefits to same-sex as opposite-sex couples, and for that matter – since it’s a federal statute, not a provision of the Constitution – Congress can always change it if there’s a popular outcry to do so. But President Obama has made no move, either as a Senator or in the White House, to make any legislative changes to DOMA, and indeed both he and Vice President Biden stated during the 2008 campaign that they opposed same-sex marriage; they were elected handily. The Democrats, even with four years of Democratic control of the House under Speaker Pelosi and a period of filibuster-proof majority in the US Senate, have made no serious effort to change DOMA. Even Barney Frank declined to push a 2009 effort to repeal DOMA in the House, noting the absence of support. State referenda have repeatedly shown the voters to oppose same-sex marriage, even in liberal gay-friendly California in the high liberal watermark year of 2008. And now, following the 2010 elections, the current Speaker of the House seeks to defend the constitutionality of DOMA. The House does so against a historical backdrop in which there is no precedent for same-sex marriage in U.S. history prior to the 1990s, no mention of the subject anywhere in the Constitution and no sign that the popular debates over ratification of the Constitution or any of its 27 Amendments ever considered the notion that the American people might be enacting a right to same-sex marriage. The evidence could hardly be clearer that DOMA is now, and has always been, reflective of the will of a bipartisan majority of the American public.

Given the futility and downsides to attacking DOMA through the political process, Section 3 has instead been under intensive legal challenge, mainly under the Equal Protection Clause. Of course, if Section 3 was struck down on the grounds that there is an Equal Protection right to same-sex marriage, the rest of DOMA and all state laws standing in the way of same-sex marriage would instantly be dead letters, so this is a legal battle for all the marbles. Ordinarily, that is the core of what the Solicitor General’s Office of the U.S. Department of Justice exists for: to defend the constitutionality of Acts of Congress. But the Obama Justice Department, in an unusual move, has unilaterally refused to defend DOMA. Thus, the American people, acting through their elected representatives, run the risk of having their views undefended by their own lawyers in the very courts they pay for.

Enter one public-spirited attorney: Paul Clement, a partner at King & Spalding. Mr. Clement, a most distinguished and respected lawyer who served as Solicitor General himself under President George W. Bush, agreed to step in and represent the House of Representatives, under Speaker Boehner, and do so at discounted rates – Clement’s own time would be billed out at probably about half his customary rate. Nancy Pelosi, who will go to the mattresses to defend millions of taxpayer dollars going to Planned Parenthood against the public’s wishes, claims that hiring counsel to defend an Act of Congress is a waste of public money. It is indeed a waste of taxpayer money – these suits would be laughed out of any court that took the Constitution seriously, and the taxpayer is already footing the bill for the Solicitor General’s office to sit on its thumbs rather than defend them – but in order to protect the public’s right to make its own laws, the taxpayer must buy in the market what public servants refuse to provide, Mr. Clement was ultimately going to charge them less than a private company would pay for the same high quality legal representation, and the estimated $500,000 cost is a drop in the bucket in the federal budget.

Enter the pressure groups. Gay groups announced plans to target King & Spalding for this representation, including through King & Spalding attorneys and clients. Lambda Legal announced that it was pulling out of a pro bono partnership with the firm. And the firm folded, announcing this morning that it was dropping the representation. A clearly appalled and anguished Clement resigned from his high-paying job at the firm in response. A sampling of his letter of resignation:

I resign out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law. Much has been said about being on the wrong side of history. But being on the right or wrong side of history on the merits is a question for the clients. When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.

…As I searched for professional guidance on how to proceed, I found wisdom in the place you and I both would have expected to find it: from our former partner, Judge Griffin Bell, in a 2002 commencement speech to his alma mater, Mercer Law School. “You are not required to take every matter that is presented to you, but having assumed a representation, it becomes your duty to finish the representation. Sometimes you will make a bad bargain, but as professionals, you are still obligated to carry out the representation.”

If lawyers who take on controversial causes are demonized with impunity, it will be difficult for unpopular people to get legal representation – and constitutional rights that protect all Americans will be weakened. That is a high price to pay for scoring cheap political points.

But let the unpopular cause be one that’s unpopular within the legal profession, like social conservatism or national security, and suddenly the so-called defenders of the bar stop quoting John Adams and start sounding more like Joe McCarthy. When California Proposition 8 was attacked in federal court, Governor Schwarzenegger and Attorney General Brown (now the Governor) refused to defend it; the opponents of the publicly-voted proposition were represented by former Bush Solicitor General Ted Olson (Clement’s predecessor), while the outgunned forces defending the voters have had to fight to even have the right to present evidence, and may yet face a ruling that nobody who was willing to defend that provision of the California Constitution has the right to appeal the order overturning it. This is collusive litigation at its worst – the legal profession agrees to hear only one side of the story and then pronounces that there must be no evidence supporting the other side. The voters don’t even enter the picture.

As a lawyer, it appalls me to say this, but the legal profession’s view of what are and are not clients worthy of representation is seriously backwards, and the hypocrisy of its stated ideals reeks in the nostrils. If you want a public target to blame for that, blame King & Spalding, and let that firm try to explain why you are being unfair to one of its clients – the elected Representatives of the American People – who it felt to be a less defensible cause than Yemeni terrorists or death row killers. Only the voters, it seems, are presumed guilty by their own lawyers.